A house explosion resulting from a leak in a service line or a defective gas regulator… A house fire caused by construction equipment hitting an unmarked, underground natural gas or electric service line… A fire resulting from the energizing of the neutral line of a warehouse electric service… These are just a few examples of damages caused by the action or inaction of public utilities for which a carrier may seek subrogation. There is a misconception that a public utility cannot be sued in Court for damages. Hopefully, this article will help to clear up any confusion and offer some guidance in cases involving public utilities.
Not every claim against a utility belongs in the PUCO
In Ohio, as in most states, public utilities have significant influence and power. One way in which the utility exercises that power is to try to move a case in litigation to a more utility-friendly venue, the Public Utilities Commission of Ohio (PUCO). Ohio Revised Code 4905.26 vests the PUCO with jurisdiction to hear and decide claims related to the provision of service by utilities. The PUCO has exclusive jurisdiction over most matters concerning public utilities, including the filing and adhering to rate schedules, forbidding discrimination among its customers, prohibiting free service, and providing a detailed procedure for service and rate complaints. That being said, not every claim against a utility belongs in the PUCO.
Jurisdiction over claims against utilities involving pure tort and contract
Even if service related, Ohio Courts have jurisdiction over claims against utilities involving pure tort and contract. The Ohio Supreme Court in Allstate Ins. Co. v. Cleveland Elec. Illuminating Co., 119 Ohio St. 3d 301, 304 (2008) set forth a two-part test to determine whether or not a claim is service related:
(1) Is PUCO’s administrative expertise required to resolve the issue in dispute?
(2) Does the act complained of constitute a practice normally authorized by the utility?
If the answer to either question is “NO,” the PUCO does not have exclusive jurisdiction over the claim and the claim can be heard by the Court.
Unfortunately, there are no guarantees. When in doubt, we are happy to provide guidance and recommend contacting one of our attorneys to discuss the viability of pursuing a public utility. Just remember, you are always welcome to send a file to our office and one of our subrogation attorneys will review and provide a recommendation.